Time To File For H-1b Status Coming Soon

April 28, 2009|Allan Wernick

The U.S. Citizenship and Immigration Services will begin accepting H-1B petitions for new employees April 1. Those petitions will be for the 2010 fiscal year, with employment beginning Oct. 1. For fiscal year 2009, the USCIS received more than the congressionally allotted cap of a total of 85,000 new petitions in the first few days of the filing period. This year, experts doubt that the cap will be reached so quickly. That makes sense given reduced hiring (particularly in the financial-services industry), restrictions on H-1 petitioning for companies that got money under the Troubled Asset Relief Program, and the fear of some companies that they will appear un-American if they hire foreign labor.

H-1B status is available to workers in jobs where a four-year college degree or higher in a particular field is a customary requirement. Besides workers brought here from abroad, H-1B status is a common way F-1 international students get work permission. In recent years, the number of new H-1B filings has been so high that the USCIS has held a lottery to decide who would get H-1B.

Despite the expectation that employers will file fewer H-1B petitions this year, I encourage anyone considering H-1B status to try to get your employer to file for you on April 1 or as soon after as possible. In an economy as large as ours, 85,000 new professional workers is a small number.

Note that some employers are "cap-exempt" and can petition for H-1B workers any time, outside the cap. Cap-exempt employers are institutions of higher education, institutions related to or affiliated with a higher-education institution or nonprofit entity, and nonprofit or governmental research organizations.

WORK PERMISSION FOR NURSES

Q. I am an F-1 international student in my final year of nursing school. Once I graduate, what opportunities are available for employment? Can I work in both public and private hospitals? -- Nursing Student, Uniondale, N.Y.

A. Assuming you get your nursing license, you can work as a nurse in both public and private hospitals. However, beyond the one-year permission you get as a graduating international student, getting USCIS employment authorization may be difficult.

As an international student getting a college degree, you are eligible for 12 months of USCIS-authorized Optional Practical Training. After that first year, getting employment authorization won't be so easy. If you are getting an associate degree, immigration law provides only limited opportunities. Except for nurses from Canada and Mexico -- who qualify for TN (treaty) visas -- foreign RNs with associate degrees can work only by getting one of 500 H-1C work permissions. To get H-1C status, you must be offered employment by a hospital in a Health Professional Shortage Area. If you get a four-year nursing degree, you might qualify for the H-1B professional-worker status discussed above. But like other H-1B workers, you would need a job offer for a position where a four-year degree is a typical requirement. So far I have been discussing temporary-work permission. You'd almost certainly qualify for permanent residence. But RNs with both two-year and four-year degrees have long waits for green cards.

Allan Wernick is an attorney, author and professor at Baruch College, City University of New York. Send questions and comments to Allan Wernick c/o King Features Syndicate, 300 W. 57th St., New York, NY 10019, or visit www.allanwernick.com.